In Cook County, same-sex couples who are terminally ill can wed early, federal judge says

Note from doctor must indicate they won't live until June 1, when law takes effect

December 17, 2013|By Kim Geiger, Chicago Tribune reporter

(Tribune illustration)

A federal judge on Monday ordered the Cook County clerk's office to start issuing marriage licenses to same-sex couples who can establish that a life-threatening illness prevents them from waiting until the new marriage law takes effect in June.

The ruling comes less than three weeks after a lesbian couple became the first same-sex couple to legally wed in Illinois when a judge ordered the county to grant them a marriage license because one partner has terminal cancer.

The ruling means that future couples in a similar situation will not have to go to court to win an early license.

"When you have a terminal illness, every day is significant," said Camilla Taylor, marriage project director for Lambda Legal, which filed the suit with the ACLU of Illinois on behalf of two same-sex couples. "While no one should be told that they cannot marry for a period of months, for couples who are dealing with a life-threatening medical condition, the delay in implementing Illinois' marriage law could turn out to be an absolute bar to being married at all."

The class-action suit was brought by couples who sought to marry in Cook County, so the ruling applies only to license applications before the Cook County clerk's office, Taylor said.

The judge gave an oral order to issue the two licenses last week. A subsequent written order, signed Monday, made the decision apply to all people who are in a similar medical situation.

The suit had the backing of County Clerk David Orr, who has long been a supporter of same-sex marriage but could not issue the licenses without a court order.

Under the ruling, couples will be eligible to obtain a license early if they submit a physician's certificationthat says that there is reason to expect that one or both of the parties of the couple will not live until the law takes effect June 1. The required form is available for download on the clerk's website.

Challis Gibbs and Elvie Jordan, two of the plaintiffs in the suit, told the court that they entered into a civil union last month from the hospital room where Gibbs is battling metastatic cancer. But they still worried that their union would be considered "second-class" by their families.

"When I die, I want Elvie to be able to say, 'I lost my wife,'" Gibbs wrote in her declaration. "I do not want her to have to say that she lost her civil union partner."

In addition to the symbolic difference, marriage comes with protections that are not afforded to partners in civil unions. Married couples are eligible for job-protected leave to care for an ailing spouse. Surviving spouses can collect federal spousal benefits and don't have to pay estate tax on a deceased spouse's property.

"The freedom to marry is important for all same-sex couples but becomes extremely important for couples facing serious health conditions," said John Knight, LGBT and AIDS Project director for the ACLU of Illinois. "For them, the personal and emotional benefits of marriage, as well as the legal protections it provides, are critical."